R v Machushek, 2016 SKCA 41
[46] Any doubt as to whether s. 21(1)(b) requires the Crown to prove the mens rea as well as the actus reus of the offence is laid to rest by the Supreme Court of Canada’s decision in R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411 [Briscoe]. Briscoe provided needed clarification as to what the Crown must prove in order to convict someone of aiding or abetting the commission of an offence.
[47] In general terms, the Court in Briscoe clarified that the actus reus and the mens rea are different for the aider or the abettor than they are for the principal offender. In specific terms, the Court made it clear that it is not the doing of the act of aiding or abetting alone that renders one criminally liable, but rather the trier of fact must consider the purpose with which the act was done:
[15] Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629, “one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs” (p. 640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
(Emphasis added)
[48] The Court in Briscoe adopted the formulation of what “purpose” means in this context from its earlier decision in R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973 [Hibbert] at para 31: “purpose” in s. 21(1)(b) should be understood as essentially synonymous with “intention.” With respect to intention, the Crown must prove that “the accused intended to assist the principal in the commission of the offence” (Briscoe at para 16). As part of the proof of intention, the Crown is not required to prove that the accused desired that the criminal act occur (although that particular aspect of mens rea is not particularly relevant in most cases where the crime is trafficking). Charron J. stated in Briscoe the knowledge component requires that “the aider must know that the perpetrator intends to commit the crime” (at para 17).
[49] Briscoe concerned s. 21(1)(b), but subsequent case authority applies this same rationale to s. 21(1)(c). In R v Pickton, 2010 SCC 32, [2010] 2 SCR 198, the Court summarized its analysis by stating the following:
[76] The main focus of s. 21(1)(b) and (c) is on the intention with which the aid or encouragement has been provided. The act or omission relied upon must in fact aid or abet, and it must also have been done with the particular intention to facilitate or encourage the principal’s commission of the offence, with knowledge that the principal intends to commit the crime … .
(Emphasis added)
See also, R v Vu, 2012 SCC 40 at para 58, [2012] 2 SCR 411; R v Helsdon (2007), 2007 ONCA 54 at paras 43–44, 216 CCC (3d) 1; and R v Almarales, 2008 ONCA 692 at para 67, 237 CCC (3d) 148.
[50] Unlike other offences that Parliament has created, the offence of being a party to an offence under s. 21(1)(b) and s. 21(1)(c) of the Criminal Code requires the Crown to prove not only the doing of the act but also that the accused acted with the intention of aiding or abetting the principal offender. The Supreme Court of Canada has referred to this as a “specific mens rea” attached to the offence of being a party (see La Souveraine, Compagnie d’assurance générale v Autorité des marchés financiers, 2013 SCC 63 at para 45, [2013] 3 SCR 756). See also, R v M.R., 2011 ONCA 190 at para 40, 277 OAC 99. The specific mens rea for the offence of being a party requires the Crown to prove both intention and knowledge.
[51] The authors of E.W. Ewaschuk, Criminal Pleadings & Practice in Canada, loose-leaf (Rel 124, February 2016) 2d ed, vol 1 (Toronto: Canada Law Book, 2016) at para 15:2010 synthesize the case law well:
The fault element in aiding and abetting arises from the phrase “for the purpose of,” which is expressly stated in s. 21(1)(b) and is implied in s. 21(1)(c). The “fault element” includes both “intent and knowledge.” The aider or abettor must intend to help or encourage the principal to commit the offence and must know that the principal intends to commit that offence though the aider or abettor need not share the intent of the principal to commit the offence.
(Emphasis in original)
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